General Terms of Sale and Delivery

Last update: April 2004

1. Scope of Application
2. Offers
3. Prices
4. Terms of Payment
5. Delivery and Delayed Delivery
6. Measures, Weights, Quality
7. Packing, Packaging Costs, Transport Damage
8. Transfer of Risk and Place of Payment
9. Warranty
10. Liability
11. Force Majeure
12. Obligations of the Customer
13. Retention of Title
14. Proof of Exportation
15. Governing Law, Jurisdiction

Download General Terms of Sale and Delivery


1. Scope of Application

  1. These General Conditions of Sale and Delivery (hereinafter “General Conditions”) shall apply exclusively to all sales and deliveries of goods, accessories and spare parts (hereinafter "Goods") by Energietechnik Essen GmbH (hereinafter “ETE”). Conflicting and/or supplementary terms or conditions of the customer will be invalid in respect of ETE. This will apply even if ETE does not expressly object to such terms or conditions or complies with its obligations unreservedly.
  2. Contained within the document, of which these General Conditions form an integral part, are all of the contractual provisions entered into with the customer. There shall be no ancillary agreements.
  3. These General Conditions shall also apply to all future business transactions with the customer.

2. Offers

  1. All offers submitted by ETE are without obligation. They represent merely an invitation to the customer to submit an offer on his part.
  2. Public statements by ETE, by the manufacturer of the delivered goods or by his vicarious agents, particularly in advertising or labelling, do not constitute any description of the nature of the Goods or any guarantee regarding the same.

3. Prices

The prices stated in the order confirmation are firm and binding. All prices exclude value added tax (VAT). In the event of cost increases beyond the responsibility of ETE occurring four weeks after order confirmation and prior to delivery, such as increases in material and labour costs, public charges or other costs, ETE shall be entitled to adjust the prices accordingly. Upon request, ETE shall substantiate such cost increases to the customer.


4. Terms of Payment

  1. Where the contract provides for payment by Letter of Credit, ETE is under no circumstances obliged to fulfil the contract before receiving the Letter of Credit.
  2. The customer shall pay the purchase price within fourteen days of the date of delivery, failing which he will thereafter be in default pursuant to § 286 Section 2, No. 2 German Civil Code. The legal consequences shall be determined pursuant to Section 288 German Civil Code.
  3. If the customer should fail to comply with his payment obligations, ETE will be entitled to refuse performance wholly or in part, until payment of the due amounts is effected or security provided.
  4. If advance performance by ETE is required and, after conclusion of the contract, a substantial deterioration in the financial situation of the customer occurs that places the payment of the agreed price at risk, in particular if the customer ceases payments or an application is made to open insolvency proceedings regarding the customer's assets, ETE may refuse delivery until payment of the purchase price is effected or security provided. ETE shall be entitled to withdraw from the contract if the customer fails to pay the purchase price or to provide security within a reasonable period.
  5. The customer shall be entitled to set-off or to retention rights only if his counterclaims have been recognised by declaratory judgement or are undisputed.
  6. The customer is not entitled to assign any rights or claims arising from this contract to third parties without the prior consent of ETE.
  7. ETE is entitled to offset any receivables owed by the customer to ETE against any receivables owed to the customer by ETE or by companies in which Georgsmarienhütte Holding GmbH, Georgsmarienhütte, has a direct or indirect majority interest.

5. Delivery and Delayed Delivery

  1. Deadlines, in particular delivery times specified by ETE, shall be binding only if they have been expressly agreed as binding by ETE. Dispatch ex works shall be definitive with regard to adherence to deadlines or delivery times. ETE shall in no way be under any obligation to adhere to confirmed delivery times if information, contributions or product requirements finalised on the part of the customer and needed for the dispatch or delivery of the Goods, such as particularly the provision of a Letter of Credit or of official documentation or import licenses, are received only after the dispatch of the order confirmation.
  2. The delivery times shall be extended commensurately in those cases in which there are obstacles to delivery that are beyond the control of ETE. This shall apply particularly to power supply interruptions or traffic holdups, imposition of embargoes, business disruptions, industrial disputes, or late or non-effected self-delivery. If it should become impossible for ETE to fulfil the contract for the mentioned reasons, the order in question shall be deemed cancelled. ETE shall inform the customer of any such obstacles to delivery without delay.
  3. ETE is entitled to make part-deliveries.
  4. If the customer falls behind in accepting the contractual delivery, ETE shall be entitled, subject to any other claims, to place the Goods in storage at the risk of the customer and to receive, from the customer, reimbursement of the additional expense incurred because of the delayed acceptance

6. Measures, Weights, Quality

Deviations in dimensions, weight and quality shall be permissible within the framework of DIN (German Industrial Standards) or customary practice. The weights shall be verified on the calibrated scales of ETE and be definitive with regard to invoicing. Proof of the weight shall be provided by presenting a weighing slip. Unless individual weighing is performed, the total weight of the consignment shall apply in each case. Differences in relation to the calculated individual weights shall be spread proportionately among the latter.


7. Packing, Packaging Costs, Transport Damage

  1. Where it is normal trade practice, ETE shall deliver the Goods packed and protected against corrosion. ETE reserves the right to select the packaging.
  2. The customer shall bear the packaging costs. The packaging will not be taken back.
  3. The customer shall report any transport damage to ETE and to the shipping company without delay and have the facts ascertained.

8. Transfer of Risk and Place of Payment

All deliveries shall take place "ex works" (EXW) pursuant to INCOTERMS 2000, Westendstraße 15, 45143 Essen, Germany.


9. Warranty

  1. The customer shall examine the goods without delay following delivery and notify any defects to ETE immediately in writing. If the customer fails to notify ETE, the goods shall be deemed approved, unless a defect is involved which was not detectable at the time of examination. If such a defect becomes apparent at a later time, notice shall be given without delay following detection; otherwise the goods shall be deemed approved even with regard to such defect.
  2. Should the delivered Goods contain a material defect, ETE shall, at its own option, remedy the defect or deliver defect-free (replacement) Goods. If the replacement should come to nothing, or it is unacceptable to the customer, then the customer may reduce the purchase price or withdraw from the contract. Any further claims by the customer, with the exception of the claims stated in Clause 10 (Liability), shall not be considered. Claims of the customer pursuant to §§ 478, 479 of the German Civil Code (recourse within the supply chain) shall remain unaffected.
  3. The warranty period shall run for one year from the date of delivery.

10. Liability

  1. ETE shall be liable for damages only if (a) liability is compulsory under applicable law, such as under the Product Liability Act, or in cases of injury to life, limb or health, (b) ETE has given a guarantee, (c) ETE culpably violates a material contractual obligation (cardinal obligation), or (d) the damage or loss is based on grossly negligent or wilful behaviour on the part of ETE.
  2. In all other cases, the liability of ETE for damage or loss, whatever the legal basis, shall be excluded.
  3. Liability shall be limited in any case to the loss which ETE was or might have been able to reasonably foresee on the basis of the circumstances and facts to which it had access when the contract was concluded, and to the loss that typically occurs in connection with business transactions of the type in question. This limitation of liability shall not apply in the cases of para. (1), sub-para. (a) and (b) of present Clause 10 (Liability) and in cases of wilful damage.
  4. The exclusion and/or limitation of liability stated in the preceding paragraphs shall also apply to the personal liability of the employees and vicarious agents of ETE.

11. Force Majeure

Irrespective of the provisions of Clause 10 (Liability), ETE shall not be responsible or liable for any disruption or delay in the fulfilment of any part of this contract caused by events beyond the responsibility of ETE, including strikes or industrial disputes. If such events should last more than 30 days, both parties shall have the right to withdraw from the contract with immediate effect by declaring their withdrawal toward the other party, without there being claims for compensation for any damage or losses.


12. Obligations of the Customer

If the Goods have been manufactured in accordance with drawings, designs, labels, trade marks or other specifications of the customer, then the customer undertakes to indemnify ETE from any claims of third parties on account of the infringement of property rights such as patents, registered designs, utility models, trade-mark laws or copyrights.


13. Retention of Title

  1. ETE reserves ownership of the delivered Goods (Reserved Goods) until all - present and future - claims arising from the business relationship with the customer are fulfilled.
  2. Any machining and processing shall take place at all times for ETE as the manufacturer, but without any obligation for ETE. If ownership by ETE should lapse due to processing, etc., ETE shall acquire ownership of the unitary item in proportion to the value that the delivered items have in relation to the co-processed items at the time of such processing. If the customer acquires sole ownership through combination or commingling, he shall assign co-ownership to ETE in proportion to value that the delivered items have in relation to the other combined or commingled items at the time of the combination or commingling. The customer shall, on behalf of ETE, diligently store the Goods of which ETE has acquired (co-) ownership. Should the Goods be in the possession of a third party, the customer herewith assigns to ETE all claims against the third party for recovery of possession. ETE herewith accepts such assignment. The (co-)ownership acquired by ETE under these provisions shall pass to the customer under the same conditions as the ownership of the Goods delivered by ETE.
  3. The customer shall be entitled to sell the Reserved Goods in the ordinary course of business. The customer already assigns to ETE at the present time all current and future receivables amounting to the value of the invoice (including value added tax) that accrue to him from the resale of these Goods. ETE herewith accepts such assignment. The customer remains entitled to collect these receivables also after assignment. This shall not affect the authority of ETE itself to collect the receivables. ETE undertakes not to collect the receivables as long as the customer meets his payment obligations from the agreed proceeds, is not in default of payment and, in particular, no application for insolvency proceedings has been filed, and there is no cessation of payments.
  4. The customer is prohibited from any other exploitation of the Reserved Goods. In particular, he shall not be entitled to assign ownership of, or pledge, the Reserved Goods as security.  The receivables assigned to ETE may be pledged or assigned as security to third parties only with the prior consent of ETE.
  5. The customer shall inform ETE in writing, without delay, of any intervention by third parties or of any distraint by third parties concerning the Reserved Goods. The customer shall bear the costs necessary to protect the rights of ETE in as far as they cannot be reclaimed from the third party.
  6. Should the customer violate a material contractual obligation, in particular if he falls into arrears with payment, ETE shall be entitled to take back the Reserved Goods at the expense of the customer or to demand the assignment of any ownership rights of the customer in relation to third parties. Further, ETE shall be entitled to revoke the customer's right of resale as well as any authorisation to collect receivables and use, exploit or resell the Reserved Goods, If ETE takes back the Reserved Goods, or resells these Goods, this shall not be construed as withdrawal from the contract. ETE may offset the proceeds from the exploitation of the Reserved Goods against the outstanding receivables. If the proceeds from such exploitation are less than the purchase price, the customer shall be liable for the loss.
  7. If the value of the existing securities exceeds the secured receivables by more than 50% in total, ETE shall, at the request of the customer, be obligated to release the securities at ETE's discretion.
  8. Insofar as ETE is entitled to take back the Reserved Goods, the customer shall irrevocably grant ETE and its representatives access to his commercial premises during normal hours of business and accept removal.

14. Proof of Exportation

If a customer residing outside the Federal Republic of Germany (extra-territorial customer) or a person authorised by him should collect Goods and transport or ship them to that external territory, the customer shall provide ETE with the proof of exportation required for fiscal purposes. Failure to provide such proof shall obligate the customer to pay the rate of value added tax on the invoiced amount applicable to deliveries within the Federal Republic of Germany.


15. Governing Law, Jurisdiction

  1. The contract relationship shall be subject to the laws of the Federal Republic of Germany. Application of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. The trade terms included under the present General Conditions shall be determined and interpreted in accordance with the International Rules for the Interpretation of Trade Terms (INCOTERMS) in the latest amended version at the time of delivery.
  2. The exclusive place of jurisdiction for any disputes arising from this contract or in connection therewith shall be Essen. Irrespective of the above agreement regarding venue, ETE shall be entitled to institute legal proceedings against the customer also at the latter's place of business.